Advanced Copyright Issues on the Internet - Fenwick & West LLP

over the course of three or four years, notifying Cybernet of alleged copyright infringement onits system. In addition, Cybernet’s site reviewers reviewed every site before allowing the sites tobecome members of Cybernet’s service, and the court found that there was evidence that manysites contained disclaimers to the effect that the site did not hold copyrights for the works on thesite. 1562 Accordingly, the court ruled that there was “a strong likelihood of success in provinggeneral knowledge of copyright infringement prior to Perfect 10’s filing of the complaint” aswell as “serious questions as to Cybernet’s constructive knowledge of infringement of Perfect10’s copyrights prior to the complaint raised by this general knowledge, Cybernet’s review ofsites containing Perfect 10 images and the likelihood of those sites containing copyrightdisclaimers. Further, there appears to be little question that Cybernet has been provided withactual notice of a large number of alleged infringements since June 2001.” 1563Citing the Fonovisa case, 1564 the court also concluded that Cybernet had materiallycontributed to the infringements by providing technical and content advice to its member sites,reviewing those sites, and attempting to control the quality of the product it presented tosubscribers as a unified brand. 1565(g) Perfect 10 v. Visa InternationalIn Perfect 10, Inc. v. Visa International Service Ass’n, 1566 Perfect 10, owner of thecopyrights in pornographic materials, sought to hold various credit card and banking institutionsliable for contributory and vicarious infringement for providing financial services to various websites that Perfect 10 alleged contained infringing copies of its copyrighted materials. The districtcourt granted the defendants’ motion to dismiss.With respect to contributory liability, the defendants did not contest the issue of theirknowledge of infringement, but denied that they materially contributed to the infringement. Thedistrict court agreed. Unlike the defendant age verification service in Perfect 10, Inc. v.Cybernet Ventures, Inc., 1567 which advertised the infringing web sites and paid a commission toa web site whenever someone registered for its services through that particular web site, thecourt noted that the defendants in the instant case did not promote the web sites that used theirservices, nor have any content-specific regulations with which merchants must comply beforeusing their services. 1568The court rejected Perfect 10’s argument that because the defendants provided essentialfinancial services to alleged infringers, they were materially contributing to the infringement.1562 Id. at 1169.1563 Id. at 1170 (emphasis in original).1564 Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9 th Cir. 1996).1565 Perfect 10, 213 F. Supp. 2d at 1170.1566 71 U.S.P.Q.2d 1914 (N.D. Cal. 2004), aff’d, 494 F.3d 788 (9 th Cir. 2007), cert. denied, 2008 U.S. LEXIS 4523(June 2, 2008).1567 213 F. Supp. 2d 1146 (C.D. Cal. 2002).1568 Perfect 10, Inc. v. Visa International, 71 U.S.P.Q.2d at 1917.- 343 -